Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

MEMORANDUM^** 

Leroy Dwayne Barnes appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines") following his conviction by guilty plea on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Barnes contends that the district court erred in departing upward from the sentencing range recommended by the Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We vacate the sentence and remand for resentencing.

This court reviews de novo whether the district court adequately identified aggravating circumstances in departing upward from the sentencing range recommended by the Guidelines range. United States v. Pearson, 911 F.2d 186, 188-89 (9th Cir. 1990).

Barnes contends that the district court failed to identify adequately the aggravating circumstances on which it relied in sentencing Barnes to a 20 month term of incarceration, four months above the recommended Guidelines range of 10 to 16 months. We agree. On review of the sentencing transcript, we are unable to determine the basis for the upward departure. Although the district court referred to "conduct" occurring during stops at a Border Patrol Checkpoint on July 7, 1988, and May 18, 1989, the specific conduct to which the court referred is not clear. Regarding the July 7 stop, the court was apparently referring to a bindle possessed by Barnes on which 70 milligrams of methamphetamine was found. Regarding the May 18 stop, however, the court may have been referring to Barnes's legal possession of a gun, or to his possession of a personal use amount of marijuana, or both.

We vacate the sentence and remand for resentencing. In view of the sentencing range recommended by the Guidelines, and because it appears that Barnes has already been incarcerated for approximately 14 months, we instruct the clerk to issue the mandate forthwith.

VACATED and REMANDED. Mandate to issue FORTHWITH.